Alcohol and drug use can have a significant negative impact on workplace productivity, performance and reputation. In 2015, one study estimated that alcohol and drug use contributed to a loss of 2.5 million days annually due to absenteeism in Australia, at a cost of more than $680 million (Manning, M, C Smith and P Mazerolle, ‘The societal costs of alcohol misuse in Australia’ (2013) 454 Trends and Issues in Crime and Criminal Justice 454). Beyond the commercial and financial impact, employers also face numerous legal risks associated with alcohol and drug misuse by employees.
A number of recent unfair dismissal cases in Australia demonstrate the risks to employers where employees’ drug and alcohol use affects the work sphere and where the employer mismanages the issue. The key lessons from these cases are summarised below:
a) The creation and implementation of clear staff policies and codes of conduct is critical. Such policies and codes of conduct should explicitly outline the employer’s expectations and employees’ responsibilities in relation to drug and alcohol use.
b) Policies should be communicated to all staff and periodic training should be conducted to ensure constant awareness of the policies.
c) The validity of an employee’s termination, where it involves drug or alcohol use, will be viewed in the context of the business’ culture surrounding drugs and alcohol.
d) In scenarios where drugs or alcohol are a factor in an employee’s misconduct, employers are often tempted to treat termination as a fait accompli and hastily institute summary dismissal procedures; however, a thorough and fair investigation should be conducted first, in accordance with the business’ standard grievance and disciplinary mechanisms.
e) Where the employer has instituted a zero tolerance policy, the question of misconduct is not necessarily a question of whether the employee was impaired while at work, but rather whether the employee has breached clearly communicated workplace policies and guidelines.